United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 27, 2005
Charles R. Fulbruge III
Clerk
No. 05-50025
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
CYRON DONDELL MORRISON, also known as Kyron Morrison
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:04-CR-2-ALL
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Before KING, Chief Judge, and WIENER and DeMOSS, Circuit Judges.
PER CURIAM:*
Cyron Dondell Morrison appeals the sentence imposed
following his guilty-plea conviction of possession of a firearm
by a felon, possession with intent to distribute more than five
grams of cocaine base, and using and carrying a firearm during
and in relation to a drug trafficking offense. He argues, citing
Blakely v. Washington, 542 U.S. 296 (2004), that he should have
received a lower sentence due to the sentencing disparity between
cocaine base and powder cocaine and because he should not have
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 05-50025
-2-
been sentenced based on the quantity of PCP found as relevant
conduct because he was not charged for this conduct.
Because Morrison raises these issues for the first time on
appeal, we review only for plain error. See United States v.
Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for cert.
filed (Mar. 31, 2005) (No. 04-9517). Morrison’s argument that he
should have received a lower sentence due to the disparity in
the punishment imposed for offenses involving powder cocaine
versus those involving cocaine base has been rejected by this
court. See United States v. Dixon, 132 F.3d 192, 202-03 (5th
Cir. 1997); United States v. Wilson, 77 F.3d 105, 112 (5th Cir.
1996). Although United States v. Booker, 125 S. Ct. 738 (2005),
applied the reasoning in Blakely to render the federal sentencing
guidelines advisory, district courts still must determine the
relevant guideline range. See Mares, 402 F.3d at 519.
Accordingly, the distinction in the guidelines between sentences
imposed for offenses involving cocaine base and those imposed for
offenses involving powder cocaine remains intact. Morrison
cannot show error because he has not challenged the mandatory
application of the guidelines, nor has he established that the
district court likely would have imposed a significantly
different sentence under an advisory guidelines scheme. See id.
at 521.
These failures also render meritless Morrison’s contention
that the district court plainly erred by sentencing him based on
No. 05-50025
-3-
a quantity of PCP that the court found as relevant conduct. The
error identified in Booker is not the use of extra verdict
enhancements, but rather the use of such enhancements under a
mandatory guidelines scheme. See id.
AFFIRMED.